State Investigator Granted Immunity For Hours-Long Detention Of Doctor At Gunpoint During A Search For Medical Records

from the CAREFUL!-HE'S-GOT-A-FAX-MACHINE! dept

How far can a law enforcement officer go to ensure an administrative search -- one looking for records, rather than contraband -- is carried out without interference? Pretty damn far, it appears.

A case before the Fifth Circuit Court of Appeals alleges Fourth Amendment violations during a search for medical records. Dr. Ikechukwu Okorie was on the receiving end of a search due to the state licensing board's suspicion he was over-prescribing opioids. Okorie wasn't facing criminal charges. The state board of licensing had suspended his license while it investigated. Okorie sought recertification. The board agreed to meet with him but also sought an administrative warrant to search his medical office for evidence it needed to make a determination on his recertification.

Serving a warrant of this type -- one not linked to any criminal accusations -- takes a village, apparently. From the decision [PDF]:

According to his complaint and Rule 7 supplement to that pleading, a large team made up of the following executed the warrant: five Board investigators, a Mississippi Bureau of Narcotics agent, a Hattiesburg High Intensity Drug Trafficking Agent, and two federal DEA agents.

Lots of bored federales hanging around Hattiesburg, it seems. That initial show of force -- nine officers, most of them armed -- was followed by more shows of force. One officer in particular -- a board investigator -- was especially enthusiastic about ensuring Dr. Okorie didn't leave the premises or disrupt the search.

On entering the clinic, Board investigator Jonathan Dalton brandished his gun and pushed Okorie into his office. He then served Okorie with the warrant. After reviewing the warrant, Okorie attempted to leave his office to discuss it with his staff. Dalton stopped Okorie. He pushed Okorie down while saying, “if you don’t sit down I will put you down!” Okorie feared for his life. Dalton eventually allowed Okorie to instruct his staff to fax the warrant to his lawyers and print the requested patient records. But while Okorie did so, Dalton stood next to him with his gun drawn.

This is extremely odd behavior for a Board investigator, especially since Dr. Okorie had approached the board to ask for a recertification hearing. But that wasn't the extent of the investigator's abuse of his position.

Once Okorie briefly spoke with his staff, Dalton brought him back into his office, where Okorie was detained for the remainder of the search. After two hours had passed, Okorie asked to go to the bathroom and was told no. Okorie “plead[ed]” with Dalton, explaining that he would have to urinate himself if not allowed to use the restroom. At this point, Dalton, “with his gun drawn,” escorted Okorie to the bathroom. Dalton forced Okorie to leave the bathroom door open the entire time, even though a female investigator and other individuals were present. Dalton also instructed Okorie to keep his hands where Dalton could see them. Only when the agents were done executing the search, three to four hours after it began, was Okorie allowed to leave the clinic.

The lower court granted the investigator immunity, ruling that it was not clearly established government agents couldn't act like unreasonable assholes during an administrative search not related to a criminal investigation. Sure, it seems excessive, considering how many officers were present during the search (nine) and how cooperative Dr. Okorie was, but there's a dearth of caselaw related to the Fourth Amendment and administrative searches.

The Fifth Circuit Court notes that these cases are becoming more common -- suggesting the government behaves just as badly during non-criminal searches. This is the third case dealing with administrative searches it has seen in the last year. Unfortunately for everyone who isn't a law enforcement agent, the cases haven't been perfectly identical, so government employees keep escaping being held personally responsible for rights violations.

But owing to a legal deus ex machina—the “clearly established law” prong of qualified-immunity analysis—the violation eludes vindication. I write separately to register my disquiet over the kudzu-like creep of the modern immunity regime. Doctrinal reform is arduous, often-Sisyphean work. And the entrenched, judge-made doctrine of qualified immunity seems Kevlar-coated, making even tweak-level tinkering doubtful. But immunity ought not be immune from thoughtful reappraisal.

[...]

To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.

There's no dissent attached to this one, even though it ultimately finds in favor of the government. The court says Okorie's claims are valid. There was nothing about this search that justified the show of force by Dalton.

Though law enforcement has understandable safety concerns when initially securing any scene, cf. Bailey v. United States, 568 U.S. 186, 195 (2013) (noting that Summers recognizes a need to “secure the premises” and for officers to take “command of the situation”), that would not seem to support hours-long detention of nonviolent individuals present at an administrative search. Yet Dalton allegedly drew his gun while accompanying Okorie and made him keep his hands visible at all times, even two hours into the detention. By this point, concerns about safety did not justify such intrusive measures. And with nine agents present in the office to execute the search, the need for such an intrusive detention was even lower.

[...]

Nothing indicates Okorie would have been uncooperative had he not been detained, and certainly nothing indicates that a drawn gun was necessary to keep Okorie restrained.

Even so, the lack of anything on point means Dalton can't be held accountable, seeing as he was the first to violate someone's rights in this particular manner.

As we have discussed, that at a minimum affects the balancing of Summers’s interests in analyzing the intrusiveness of a detention even if it does not outright eliminate the government’s right to detain without probable cause. But we have never considered the question, and only a few other courts have. The dearth of caselaw on this question might indicate the government rarely detains people while executing administrative searches, a fact that would be consistent with Okorie’s view of the Fourth Amendment. The consequence, though, is that Okorie is unable to point to caselaw clearly establishing the unlawfulness of this type of detention. As a result, qualified immunity defeats Okorie’s claim.

Here's the silver lining: if any armed officer decides to violate someone's rights this way in the future during an administrative search… well, they've been duly warned.

Going forward, an hours-long detention of a person during an administrative search of a medical clinic or similar establishment, during which a gun is drawn, will be unlawful absent heightened security concerns.

That's the bright line. It's very specific, dealing with only one type of search, and has requirements that could possibly be overlooked if the government can make the court believe the search presented "heightened security concerns." Careful with those "furtive movements," searchees.

Reader Comments

It's been said that if you repeat the same lie enough times, people will begin to believe it's true. Is that why you kept saying that this was a minor search and the doctor was never under suspicion of any crime?

They were looking for evidence of him over-prescribing opioids, and had a warrant for it. In case you failed to read between the lines here and missed the subtlety, that means they had good reason to believe he was abusing his position of trust and acting as a drug dealer. Which is a very, very serious crime. Probably more than one, in fact.

Doctors who do that can be very scary, very dangerous people, just like any other drug dealer. In light of that, I don't see how the cops did anything wrong with taking reasonable precautions to make sure he couldn't make trouble for them or the people around them.

Re:

Okorie sought recertification. The board agreed to meet with him but also sought an administrative warrant to search his medical office for evidence it needed to make a determination on his recertification.

Re:

You failed to note a significant point, it was not a criminal search, but rather an administrative search to see if his license could be returned. Someone looking for restoration of a license is hardly going to be dangerous to those checking to see if it can be restored.

Re: Apparently Andy wasn't along on the raid...

That detention sounds like kidnapping when someone other than law enfircement detains someone. Sure its different because of the administrative search, but the act is the same. Too bad this government hates the people of this country and treats everyone like the enemy until a court of law lets you go free. You will still never feel free while this rogue inquisition is empowered by law making judges.

Re:

It's important to recognize the this problem is not just with the government. Far too many people believe that any abuse is just fine as long as the police are the abusers. Until most of the populace accepts and agrees that even those who may have committed a crime should be given basic rights and protections against excessive abuse the government will continue to be free to do whatever it wants.

So, as I understand QI, if you killed the President, obviously you are going to fry. But the Trump estate and/or his family could not sue a cop for the assassination as it has not been determined that a cop committing an assassination has not been adjudged to infringe the Pres. constitutional rights. That is beyond fucked up. Then again with US ADAs taking bets on whether cops can rape minors if they are 15 and the NY case involved cops raping a 14 year old, the entire judicial system seems to be fucked up now. Thanks judges for your collective lack of spine

Re:

Qualified immunity is a made up term and is nowhere in the constitution of criminal law. It is a free pass for rights violations, as long as you are part of the government. If a normal citizen did exactly the same thing to the officer involved, you had better believe the person would be behind bars right now.

Re: Re:

'Qualified immunity', and it's partner 'good faith exception'(among others), is a legal abomination that should never have been accepted or allowed, as it not only sets up a two-tiered legal system but creates situations like what's covered here, where those that should be held to higher standards and face higher punishments for violating the power and authority they are granted are instead held to lower standards(if any), and can completely avoid punishment for actions that would have seen a general member of the public thrown in a cell in a heartbeat, under the apparent idea that public officials are just too damn stupid to grasp basic concepts unless they've been explicitly spelled out for them, despite the fact that a member of the general public would most certainly not be granted the same leeway.

Ah the classic excuse, 'No one is dumber than a public official'

To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.

Probably because that's exactly how it works in practice, as evidenced by this very case where it's agreed that what the investigator did was a violation, yet they still get off without punishment merely because they were the first to violate someone's rights in that specific manner.

'Qualified immunity' is a bullshit idea that should never have been allowed, because it does allow public officials to duck responsibility for their actions, under the idea that (for example) someone can be both considered qualified to have a deadly weapon as part of their default gear and at the same time be so monumentally stupid that they have to have the most basic concepts spelled out to them explicitly before they can understand them.

Going forward, an hours-long detention of a person during an administrative search of a medical clinic or similar establishment, during which a gun is drawn, will be unlawful absent heightened security concerns.

Great, so all they have to do is merely threaten someone with a gun, rather than actually draw it, and the next thug with a badge will be able to escape being held responsible for their actions, because after all if the case isn't exactly the same then how could they possibly know?

They may have bemoaned how the system/doctrine looks tailor made to allow those that should be held to higher standards to be instead held to the absolute lowest(if any), but for all their empty talk they still upheld that very idea, making it clear what they really think about the matter, and gutless judges like them are the very reason such a system/doctrine works for those that it protects from the consequences for their actions.

Congress has some work to do

Here is a list of things that Congress has failed to act upon (in no particular order), and not only should they, but clearly need to. I not only don't expect them to, I am also very afraid of what they might do if they did.

Qualified Immunity discarded

Federal Murder crime

Inevitable Discovery given very strict and limited uses

Controlling Precedents

Requirement for LEO's to know the laws they enforce

Body cams and dash cams required, failure to record or loss of recordings are destruction of evidence

No forfeiture without conviction and proven nexus for forfeited assets

Required testing of drug dogs or other use of dogs, in court for every claim a dog makes

DoJ required to investigate every LEO use of force incident for potential violation of rights with an emphasis on proving no violation took place rather than just a determination, and another agency to investigate DoJ uses of force

Law enforcement license that prevents a LEO getting fired or suspended and then hired by another department

Proven efficacy of Field Drug tests in court every time they are used and an arrest is made

Good Faith exception given very strict and limited uses

Prevent the Third Party Doctrine

Federal Anti SLAPP law with sanctions more severe than just pay the lawyers fees, pay for time and stress

Enable Actual Innocence as a reason to release prisoners

not clearly established as an excuse for courts to allow bad law enforcement practice

reasonably scared cop is not a sufficient reason for law enforcement to use undue force

Revert copyright laws to 14 years with a paid update for another 14, with that payment high enough to be a significant deterrence to update.

Adjustment to the DMCA law to give teeth for bogus take down requests, significant monetary and jail time teeth.

That list is not necessarily comprehensive and some of the items might need further definition or clarification.

Re: Congress has some work to do

Re: Re: Congress has some work to do

Theoretically yes, however the law has been weakened to such an extent(and given how pathetic it was to start with...) that it's effectively impossible for the penalties on that half of the DMCA to trigger.

As far as I know you would essentially need to have the one who sent the bogus DMCA to have recorded their knowledge that they knew ahead of time that it was a bogus DMCA, get that record and have it confirmed to even have a chance of having the penalty apply, and even then I wouldn't put good odds on any sort of real punishment being handed out.

Going forward

"Going forward..."
Let me rephrase: if you are detained and if it is in a medical clinic and if it occurs during an administrative search, then you should make sure it is at gunpoint and lasts at least a couple of hours. You'll likely need that long anyway to figure out how to credibly prove it in court. And anything less, well, forget it.

Re:

Bullshit. The police union provides lawsuit protection automatically and noncovered workers could get similiar for deeper pockets. Besides "might be sued for any reason" is the status quo for mere mortals - getting held at gun point by someone who the police won't show up to stop because he is the police is far worse.

The [ongoing] insanity of the drug war

It's funny how often we hear about how long the War on Terror has lasted when the drug war is still going strong after nearly 5 decades. You'd have to be on drugs to not realize the insanity behind it. The drug laws and their enforcement have caused far more harm than drug use could ever hope to.

I wonder what Al Capone thought about Prohibition? What do those chemo therapy sufferers who found relief only with marijuana think about the millions of folk who never got a chance to get similar relief because the law made it impossible? I'm sure Colombia was quite happy when our laws did such wonderful things for it's government, especially certain Supreme Court magistrates, 11 of them wiki says.

And of course there's the mass of really bad law arising from drug cases and the over-zealous DAs, US Attorneys and judges who can't abide our personal choices about what to put in our own bodies. I wonder which has led to more really awful law, drugs or child porn? Maybe we should talk to Peggy McMartin and get her thoughts on the matter?

The judge has not understood Qualified Immunity

Going forward, an hours-long detention of a person during an administrative search of a medical clinic or similar establishment, during which a gun is drawn, will be unlawful absent heightened security concerns.

Wrong. Qualified Immunity provides protection against both reasonable interpretations of law codes as well as protection against established case law since law enforcement officers are not required to study case law either. If a police officer cannot be shown to intentionally copycat a law violation for which his knowledge of case law can be proven, he gets a free pass. And as opposed to copyright violation, there is no "three independent strikes and you are out" for civil rights violations.

As long as a police officer can feel like he is inventing new crimes as he goes, Qualified Immunity will protect him. So a group of marauders along the line of Alex and his droogs in Burgess' "A Clockwork Orange" would receive continued protection by Qualified Immunity if they were committing their somewhat inventive crime spree under protection of a badge, even if unbeknownst to them other groups would indulge in comparable atrocities under misgivings of judges.

I'm surprised the precedent set was so broad. I expected it to be that the next officer only gets in trouble if:

All the conditions listed in the article AND

He brought exactly the same number and job title of supporting investigators to that search as was done here. If he brings fewer, he has fewer supporting agents to help him control this dangerous citizen. If he brings more, he will have more people for whom to flaunt his authority.

The investigators in the next case are of the same height, approximate weight, and build as the ones on this search.

It's done on the same day of the week and same time of year.

It's done under the same type of weather (clear sky, thunderstorm, snow storm, etc.) - all have different properties that might influence the judgment of an officer.

It's done for the same type of administrative search warrant.

The warrant is issued for the same general purpose (collecting records potentially relevant to a reinstatement request).

The plaintiff in that case is of the same height, approximate weight, and build as the plaintiff in this case. After all, a heavier plaintiff might be better suited to wrestling the officer's weapon away, and a lighter plaintiff might be more agile.

Anyone understand the BIG part of this..

1..

Every perscription for HArd drugs MUST be on a certain Script...Those are KEPT by the pharmacy on filling them. THAt is the protection of the pharmacy. With a Doctors sig, thay are protected. Unless that Script pad was stolen...but it has to be REPORTED IMMEDIATELY..

You can find all your evidence AT THE PHARMACY... because if he did this, there is a very high HE DIDNT WRITE IT DOWN..